THE province of B.C. is asking a judge to throw out a civil lawsuit filed by a North Vancouver man whose convictions of multiple rape were overturned after 27 years in jail.
Ivan Henry sued the province, Vancouver Police Department and the Attorney General of Canada last year, seeking damages for the time he spent behind bars.
Henry, 65, was released from jail in 2009 and the B.C. Court of Appeal acquitted him in 2010 after ruling there were serious errors in the way his original trial was conducted in 1983.
The case against him had rested on the victims' identification of him as their attacker, but the police line-ups Henry was put into were heavily stacked against him. In one, he was put in a chokehold by a police officer while the other men were not.
Last July, almost a year after his release, Henry filed a civil lawsuit seeking damages for loss of liberty and reputation, pain, suffering and psychological harm while in prison. The lawsuit alleges the police and Crown counsel were both negligent in their conduct of the case. Among those claims, Henry said Crown prosecutors failed to disclose evidence to him that they should have, in violation of his rights.
The claim also alleges both the police and the Crown were aware of the possibility another man was responsible for the attacks as early as 1982, without passing this information to the defence.
But recently the province filed an application to dismiss Henry's claims, arguing that the actions of Crown prosecutors are immune from civil liability.
In the application, the province says the law gives Crown prosecutors a qualified immunity from a civil suit arising from the conduct of a criminal prosecution, unless that conduct is motivated by malice.
The province argues it can't be held responsible for other failings on the part of prosecutors, including "incompetence, inexperience, poor judgment, lack of professionalism, laziness, recklessness, honest mistake" or "negligence."
In the case of Henry, the Crown wasn't motivated by any ill-will and had "reasonable and probable grounds" to prosecute him, says the province's application.
Over the more than 20 years Henry spent in jail, he filed more than 50 applications for review or appeal of his case, which were all denied. The case was only re-examined after a veteran prosecutor noticed striking similarities between the Henry case and 25 then unsolved sex crimes between 1983 and 1988. Another man was eventually convicted of three of those offences after being linked to them by DNA. That led to the reopening of Henry's case in 2008.
Although neither Henry nor his lawyers have discussed any dollar figure they are seeking, it is expected his lawsuit could potentially result in a multi-million-dollar award or settlement.
Henry served more time in jail than any other Canadian later found to be wrongfully convicted.
In 1999, the Saskatchewan government awarded $10 million to David Milgaard for the 22 years he was wrongly imprisoned for a 1969 murder and sexual assault.
In 2008, the Ontario government agreed to pay Steven Truscott $6.5 million in compensation for his time in jail. Truscott was given the death sentence in 1959 before being paroled in 1969 and acquitted in 2007.
Several other multi-million-dollar awards have been handed out to people who have been wrongfully convicted and imprisoned.
